Financial penalties for breaches of the legislation have recently increased |
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Under most Commonwealth laws, financial penalties are expressed in terms of ‘penalty units’ instead of dollar figures. As an example, a maximum fine would generally be expressed as ’10 penalty units’ as opposed to ‘$1000’. The Australian Government recently increased the value of penalty units that apply to breaches of most Australian Government laws. On 28 December 2012, the value of a penalty unit for calculating financial penalties increased from $110 to $170. The penalty unit value had not been adjusted since 1997. The civil penalties that apply for contraventions of the Spam Act 2003 are calculated using penalty units. This means that all financial penalties calculated using penalty units under the Spam Act 2003 will be higher for breaches of the legislation that occur on or after 28 December 2012. The ACMA is currently in the process of updating its website and other information and fact sheets about the Spam Act 2003 to reflect the new higher penalty unit value. |
Search and seize powers
The Spam Act gives the ACMA powers to search premises and seize equipment where the Act is breached, and to impose and enforce penalties. The Act also provides for orders for forfeiture of profits derived from spam, and payment of compensation to spam victims.
Penalties
Penalties for breaching the Act include fines of up to $1.1 million per day. There are also provisions for spammers to forfeit profits and pay compensation to spam victims.
Botnets and criminal activity
It is illegal for any person or organisation to remotely use and control another person’s computer without their knowledge or consent. Computers under the control of an unauthorised person are known as ‘Botnets’. Botnets are illegal and criminal penalties apply to spammers who compromise computers and turn them into botnets. The ACMA refers botnet activities to the Australian High Tech Crime Centre or the relevant state or territory police force - depending on the botnet activity. Botnets are an offence under the Criminal Code 1995 relating to:
- unauthorised access and modification of data via a carriage service. For example, accessing another persons computer to install a bot. The penalty – a two year maximum prison sentence
- unauthorised modification of data via a carriage service. For example, installing a bot on another person’s computer.
The penalty – a 10 year maximum prison sentence
- possession of data with intent to commit a computer offence. For example, possession of bot binaries and exploiting tools or installers.
The penalty – a three year maximum prison sentence.
- producing, distribution or obtaining data with intent to commit a computer offence. For example, writing a bot code or selling a bot code, or similar actions.
The penalty – a three year maximum prison sentence.
Participating in mule scams may lead to a criminal conviction - Australian 'mule' convicted (Sept 2007).
More information
The ACMA website provides comprehensive information about the Spam Act and how you can:
